This sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a veryMarx here makes the distinction between exchange and production. Notice that Marx places the notion of law and "equality", i.e. the legal form, within the dimension of exchnage, just as Pashukanis does. This perhaps lends credence to the correctness of Pashukanis' position. However, surely, as Marxists, there must be some place for production in law. Indeed there is, if we stretch Marx's metaphor it becomes clear, behind the form, as constitued by exchange, beyond the market, lies the factory. Pashukanis never fully examined the determination of legal content, but this is one place in which production (and therefore class struggle) assumes a more prominent role. Furthermore, several authors (whose names I will mention at some other point), following on from Foucault, liken the prison to the factory. It is here that the standards of production are enforced, and those who conform to the standards of capitalist labour discipline, are released, and those who do not, are punished.
of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Eden
On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the “Free-trader Vulgaris” with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but — a hiding.
Marx, Capital: Volume 1, Oxford: World Classics, p. 113
Wednesday, August 31, 2005
Saturday, August 27, 2005
A common critique of Pashukanis, and a number of other Marxian legal theorists from a Marxist perspective it that such theorists have succumbed to reification. By this it is meant that the Marxists have focused upon a social relation and artificially isolated it from the whole, it is said that such an approach takes capitalist ideological formations as a given. However, I believe this approach is incorrect.
Firstly, I have to say that I do not particular like the term reification (even if I personally often use it), the terms seems to be very amorphous to me, and is seemingly deployed without content. The term was largely popularised by Lukács in his History and Class Consciousness (an excellent, if somewhat dense, work) but Lukács was later to disavow many of the formulations in this book. Furthermore, I do not agree that examining law, as it exists in reality and in bourgeois jurisprudence, is necessarily succumbing to any bourgeois impulse. Rather, I think we are analysing a historically constituted form of regulation as it exists and as it has materially developed, this form has been historically recognised as law, and so when we analyse law, it is necessary to examine it as it has been constituted. Furthermore, the relation of law is not one which is artificially separated from other forms of social regulation but is rather a real historical division. I think that a Marxist critique needs to operate in this way; we examine social forms as they are constituted (and even as they exist in material practice) whilst looking at the underlying social relations that give birth to them. Thus, we don’t call “capitalism” a reified concept, even though some think it one (Andre Gunder Frank certainly did), rather we examine capitalism as it was historically constituted and practised and look at the underlying social relations.
When you examine society it is impossible to truly “separate out” all of the elements. “Discrete” categories interfere with other categories, cause becomes effect, and the numerous interrelations between different elements of the totality seem to make individual analysis impossible. However, what one must understand if that simply because something plays a role in determining another thing, it does not mean that the two are immediately equal. Law can be distinguished from politics on the basis of a specific form, and through its embodiment in specific material institutions. The fact that politics intervenes at different levels of the legal process does not mean that law collapses into politics; by this logic the Marxian project would reduce everything to economics. Yet we know that specific relationships and internal dynamics are capable of rendering a category conceptually distinct from other phenomena. Only in this way can the category be understood as an abstract element, so as to be integrated back into a concrete totality. Even if ultimately legal decisions are based on politics and the legal form is based on economics, we must still understand what precisely the legal form is. Everything reacts on everything, but before we can understand this interaction we must understand the abstractions that make up the whole. This is the brilliance of Pashukanis’ analysis, he allows us to acknowledge the political content of law whilst simultaneously demarcating it from politics, on the basis of its “legal character”.
Whenever I read a bad critique of Marxism I shudder. Marxism should of course be subjected to a critique, but only on the basis of what can accurately be described as Marxism. The creation of strawmen, intentionally or unintentionally, is always something that should be combated. Therefore, it pains me while reading otherwise excellent works, to see quotes such as this:
For example, most critical scholars reject the crude Marxist view that the law has the content that it does in order to best serve the interests of the capitalist class. Nor have critical scholars been tempted by the more sophisticated, but still functionalist, premise that the legal system is relatively autonomous because that autonomy is in the interest of the capitalist class. [i]
Such a position is one that seems fundamentally opposed to Marxism. Marxism does not posit that law, or politics is automatically favourable to capitalism, rather it posits that it is the result of a class struggle and the structural relations of an economy. Of course it is argued that at certain points in his life Marx held the view that law and politics automatically reflected the interests of a dominant class, but what Marx thought, or wrote is not equal to Marxism, rather Marxism is a particular methodology. This is the only way that Marx’s account of the legal regulation working day can be explained.
Of course there are those who hold that the law does simply reflect capitalist class interest, but these are often people who simply have no idea about Marxian legal theory. To allege that laws were solely the will of the ruling class is to eliminate the dynamics of class struggle from historical materialism. The Manifesto does not state that all history is the history of class, rather it states:
If one takes the, apparently Marxist, functionalist view, how can one be consistent with the above? Such a view also means seeing the working class not as a struggling class, making its own history through conflict, but rather as the passive object of history made by the bourgeoisie. Even if every law were made by the ruling class, it would be necessary to show that it was not the result of a class struggle, which would end up being unMarxist anyway.
Of course there are two caveats to this. Firstly, point (4) in my previous post posits that even a successfully “proletarian” law can be fundamentally altered due to the reintegration into a particular structural totality. Hence the regulation and shortening of the working day caused the shift to the accumulation of relative surplus value rather than absolute surplus value. Furthermore, it served to reintegrate the working class into a capitalist framework, assuaging their demands and therefore stabilising capitalism. In this way one might well posit that all laws that do not result in the transcendence of capitalism ultimately function in favour of the capitalist class but this is a good deal more complex than the apparent Marxist functionalism. Secondly, it might well be said that the class struggle account maintains a class instrumentalism and functionalism, in that ultimately the law still serves as the interest of a particular class, and are therefore still an instrument serving as a class function.
[i] Lawrence Solum, ‘On the Indeterminacy Crisis: Critiquing Legal Dogma’, 1987 University of Chicago Law Review 462, at p. 486
Friday, August 26, 2005
1. As I have already outlined the legal character of the law is materially determined by commodity exchange. This form has wide-ranging consequences for content; I will later outline how the legal form dialectically conditions legal content. Thus in this instance we see how law is immediately influenced by economics.
2. The content of a particular statute is decided by legislation. A Marxist interpretation would see how legislation is influenced by political considerations; a Marxist analysis would posit that the particular content is determined by class struggle, and other material relations. An analysis needs to show the concrete methods in which class struggle influences legislation (an example of this would be Marx’s considerations of the regulation of the working day).
a. A particular statute, or piece of legislation, will have many different interpretations. Therefore there must be something that influences legal decisions aside from legal reasons (this will be expanded upon). A Marxist analysis needs to see how material relations influence the resolution of such underdeterminacy. In this way certain laws may be ‘captured’ and used for ends they may not have been ‘intended’ for at the first stage (witness the American constitution).
b. Furthermore, there is a fundamental underdetermination in the common law, as distinct from statute law. Here there is much more latitude for judicial decisions and different canons of interpretation/legal reasons will come into conflict. Again it is necessary to see how material relations will influence such a decision.
4. When a law is enforced it acquires force within a particular social totality. A fundamental Marxist principle is that integration into a totality alters content. Thus it is necessary to see how t even progressive laws can be organically integrated into capitalism; this is the notion of repressive tolerance or recuperation.
Of course such “levels” are simply an approximation and in practice there is a fluid interaction between these different degrees of materiality. Certainly the legal form makes itself known at all levels and the distinction between the third and fourth levels is a fine one. What such a model gives is a way of examining the law, a starting point if you will. That such a model may be transcended is unimportant, what it provides is an idea of how a Marxist legal theory might begin to coalesce and specific topics for empirical and theoretical research.
Wednesday, August 24, 2005
Tuesday, August 23, 2005
Thus far I have outlined the historical origins of the law’s “legal character”, in its most basic form, yet embodied concretely (a concrete universal as Ilyenkov might put it). But this is not sufficient in outlining the legal character, as although the basic form has been outlined, one must still account for the law’s general character. Both bourgeois legal theory and the law as embodied in daily practice do not simply posit opposed subjects. The legal subject is seen as an abstract subject, divorced from a particular context and bears abstract rights, as asserted against another abstract subject. This is why laws are always framed in general terms, and confer general rights (even if in specific contexts).
According to Pashukanis this development does not fully occur until the advent of bourgeois society. The legal subject only becomes fully abstract with the development of exchange value and the commodification of human labour.
“In the same way that the natural multiplicity of the useful qualities of a product is in a commodity a simple mask of its value, while the concrete species of human labour are dissolved into abstract human labour as the creator of value so the concrete multiplicity of man's relationship to an object appears as the abstract will of the owner, while all the concrete peculiarities, which distinguish one representative of the species Homo sapiens from another, are dissolved into the abstraction of man in general as a legal subject.”[i]
Capitalism, as a social system, has a distinctly homogenising tendency. Capitalist production tends to reduce all labour into simple, measurable “parts” (e.g. the assembly line), and all commodities become ultimately defined by one quality their exchange value (i.e. money). This tendency is reproduced in the legal sphere, which, as it expands to embrace more and more people, is necessarily divorced from particular concrete circumstances. This transformation is linked with the process I will describe below, as one can only understand the generality of law if one understands its universality.
The problem with Pashukanis’ conception of the legal form is that, in its purest state, it is only applicable to those disputes as arising from the commodity form, that is to say, property and contract law. Obviously this cannot be right; the law is a form of social regulation is all pervasive in modern society. Therefore it is necessary to historically outline how the law comes to regulate other aspects of social life.
As I have outlined, the legal form is generated by the commodity form. Therefore in those societies where there was commodity exchange the legal form would regulate disputes arising from exchange, this must be remembered as an ever present feature. There are two interlinked factors that allow for the rise of the legal form, one political and one economic, both of which working in reciprocal determination.
In societies prior to capitalism one’s position in the socio-economic order was determined by status. This meant that in any dispute there would be a command, and then someone would obey. Customary or hereditary hierarchical relations determined how things worked and disputes were resolved in this manner. Although law did exist it was confined to narrow limits and confused with a series of other social regulators.
However, in the move to capitalism such status was seen as a hindrance to commodity production. For, formally at least, capitalism is based on equality in the market. Since, historically, customary privilege had been largely economic it was necessary to remove it, so as to create the market. Therefore the bourgeoisie, at its birth, carried out a struggle against such privilege.
Simultaneously with this the commodity form, as the ‘unit’ of capitalism,[ii] gains more andmore prominence. Commodity exchange, as has already been discussed posits individuals as formally equal in the economic sphere, whilst simultaneously generating the legal form, and therefore legal subjects. As capitalism begins to constitute itself, the modern working class is created, and labour becomes a commodity. What this means is that as hierarchical societies are destroyed all people become commodity owners.
Therefore all people are, in one area or another, legal subjects, yet this is still simply confined to disputes arising from commodity exchange. And here the link to the disintegration of feudalism rears its head. Dispute can no longer be coordinated by custom, since such regulation is positively antithetical to the market. The specifity of the commodity form and the legal form, combined with the collapse of custom means a combination of social regulation would be incoherent.
But how is it that the legal form comes to regulate these other disputes. As I have already said, at this point people, as commodity owners are already constituted as legal subjects, in terms of commodity exchange. Therefore, the legal form begins to shape other disputes too. Since it already exists, and since bourgeois society has a fragmenting tendency it is only logical that it come to regulate all social grievance (where there is a vacuum). Thus people, in all disputes, are interpelllated as legal subjects, abstract commodity owners asserting their rights. Legal subjects therefore are not simply recognised as such since they are commodity owners, otherwise only commodity disputes. Rather, they are interpellated as legal subjects, in part because they are commodity owners, the existence of the commodity form obviously generates the legal form, but it is only with the collapse of hereditary customs that the legal form comes to interpellate all as legal subjects, even in those areas unconnected from exchange.
As more and more people are rendered as legal subjects, until all are, it is obvious where the abstract character of law arises. Since everyone is a legal subject any concrete differences must be obliterated so that the legal form can provide a form of regulation.
Such an examination of course raises problems. Firstly, the example used here is the transition from feudalism to capitalism, which begs the question as to why there were legal systems in slave and feudal societies. Obviously, the legal form had already been generated by the commodity, yet one must still explain why other aspects of life had come to be regulated by it. The first point to make is that there were a number of people who were commodity owners, and so were interpellated as legal subjects. Most people who could own commodities were equal in status, and so customary duties would not serve to regulate. Therefore, on a small scale legal relations did exist (remembering that many people were not recognised as legal persons). Yet in this period the law was much less ‘pure’ and ‘abstract’, instead being ‘mixed up’ with other forms of regulations, and tied very specifically to certain situations. Furthermore, the legal subject was not abstract, in that it was typically a Roman citizen who was a paterfamilias. Finally, the fullest Roman law was that which was related to commerce and exchange.
Saturday, August 20, 2005
Tiredness as a result of work meant that I really couldn’t be bothered to engage in any theoretical reflection, but I’ll attempt to do so today, though I may not be able to complete it. As I said previously one can identify law as a form of social regulation that takes on a “legal character”. Therefore in order to advance upon my previous post it is necessary to elucidate precisely what constitutes this legal character and how it came into being.
Once again this will necessitate a brief mediation upon the methodology necessary to discover the legal character. As I have already stated in order to fully understand the legal character of law it will be necessary to construct both a theoretical and historical account of the law. One cannot understand something unless one analyses its material and conceptual history. This might at first seem odd, one surely need not observe something’s history simply to understand what it is. Yet in Capital Marx does the very same thing, in Capital, Marx shows us that capitalism can only be understood historically and logically, whereby abstractions (i.e. the commodity form) grow dialectically, materially and historically into concrete systems
Therefore an analysis of the legal character of the law must be an ascent from the abstract to the concrete, in both analytical and historical terms. If one analyses the most abstract concepts of the law there is a historical convergence. The theoretical and practical existence of the law appears to be rooted in the clash of two individuals, one asserting an abstract right against the other.
This is easily seen by looking at the structure of a court scenario. Here the law, at its most visceral and practical, is seen as the clash of two subjects, mediated by some third force (the state), violence is then threatened or used against one of these participants, so as to “resolve” the dispute. This practical relation also sees it actualisation in the theoretical realm, where the concept of the individual “subject” is central. In his characteristic way Pashukanis therefore deduces that:
“[A lawsuit] elicits the form of law, the legal superstructure.”[i]
The form of law therefore, seems to be at its most basic “a person endowed with a right and actively asserting it”, the fact that “a person” is “actively asserting [a right]” implies the presence of a second subject, hence a legal form. From a simple observation of the operation of the law in society and the abstract categories of bourgeois jurisprudence one can begin to develop the “legal character” of law, that which differentiates it from all other social regulation. But in order to explain the law simply asserting this is not enough. Now that a basic but at the same time “pure” legal character has been developed it is possible to examine the development of such a character in history (“the anatomy of man contains the key to the anatomy of the ape”), and the material origin of this.
Understanding that which constitutes a legal character allows us to trace the historical emergence of such a character, and therefore the social relations that generated it. If we look at the legal form, two subjects, each asserting their rights and unified only in this bond there is an obvious capitalist social relation that bears similarity. Namely the commodity form, here, again, two subjects – as mediated through a relation – with opposed interests (buy low/sell high). There is an immediate homology between the two, yet the connection is deeper.
Historically we see the first tentative elaborations of “law” as an independent form of regulation in Rome. Now such regulation was certainly not binding on all people (and this in itself is an argument for the theory Pashukanis puts forward) but the legal form was certainly present. Rome was the first society in which commodity production took on a large role, and therefore this adds some credence to the connection between the commodity form and the legal form. As Marx puts it in the Grundrisse:
“In Roman law, the servus is therefore correctly defined as one who may not enter into exchange for the purpose of acquiring anything for himself (see the Institutes). It is, consequently, equally clear that although this legal system corresponds to a social state in which exchange was by no means developed, nevertheless, in so far as it was developed in a limited sphere, it was able to develop the attributes of the juridical person, precisely of the individual engaged in exchange, and thus anticipate (in its basic aspects) the legal relations of industrial society, and in particular the right which rising bourgeois society had necessarily to assert against medieval society.”[ii]
Aside from the simple homology between law and the commodity, there is a deeper material connection between the two. In a very real sense the commodity form is what gives birth to the legal form, and serves as its concrete foundation. Inherent in the commodity form there is an acute conflict of interest; the buyer and the seller, no matter what we are told, have mutually opposed interests, dispute is the defining factor of the commodity. Aside from the simple clash of interests (in terms of exchange values) there is another essential conflictual relation imbedded in the notion of commodity ownership:
“Violence – coercion – is at the heart of the commodity form. For a commodity meaningfully to be ‘mine-not-yours’ – which is, after all, central to the fact that it is a commodity that will be exchanged – some forceful capabilities must be implied. If there were nothing to defend its ‘mine-ness’, there would be nothing to stop it becoming ‘yours’. Coercion is implicit.”[iii]
Coercion and dispute do not always remain implicit; they were frequently actualised in trade. It is at this point that law, in its embryonic form, comes into being. In order curb the dispute violence is necessary; the violence inherent in the commodity form is therefore actualised as law, in the legal form. The contract, the central legal relation in all societies, is the direct actualisation of such conflict and violence; it is in this way that Walter Benjamin’s thoughts on the contract form acquire real significance. Benjamin and Pashukanis show the link between the violence in the commodity form and the violence that is the law. This is the manner in which the “lawsuit elicits law”; the conflict of interest is that which requires violence. Of course, this flies in the face of much convention wisdom, in that, at this point the state has not even been mentioned. Pashukanis instead seems to be concentrating on “subjective” rights, as against objective ones.
Of course the fact is that the violence needed to regulate such an interest is much more efficient when it is the violence of a third party (which is how Pashukanis derives the state – an approach I do not necessarily approve of). However, the fact is that what we are observing here are the material origins of law, that such violence is eventually regulated by the state does not change its historical origins. Furthermore, reasoning in this manner Pashukanis is able to stay faithful to the materialist thesis that the state is determined by civil society, particularly in its formation. Therefore one must observe the beginnings of “objective” law in “subjective” law.
Pashukanis brilliantly observes this movement in his General Theory:
“[T]he legal subject with the sphere of legal domination expanding around him was morphologically preceded by the armed individual or, more often, group of people, clan, horde, tribe, capable in a dispute or a battle of defending that which was the condition of their existence.”[iv]
The embryonic origins of the legal form have therefore been posited. However, this is not sufficient to fully explain the law. It must now be shown, historically, how the law is fully realised and how law comes to regulate more and more social relations. Although the duel and the dispute embody the legal form in its beginning stage they do not yet exist as law in its modern sense. The legal form, as it exists to day, is general in form, and posits abstract legal subjects; therefore it is necessary to examine how this generality comes about.
Therefore the next entry will entail describing the growth of the legal character into its more “pure” form, and a historical account of how this legal character comes to regulate other social relations.
Wednesday, August 17, 2005
“The legal person is the economic mask of the property relationship. As a mask it covers the true face and obscures the fact that private property is not only a subjective right but is at the same time the basis of "master-slave relationships". The contract, being the auxiliary guaranty of private property is a contract between free and equal legal persons. But this freedom and equality exists only in the legal sphere. The legal equality of the contractual partners hides their economic inequality. The labour contract in particular is a contract between the legally equal worker and entrepreneur. It's from does not reveal the fact that in actuality the entrepreneur is more powerful than the worker. The Staatsperson alone is supposed to be the bearer of sovereignty, and the positivist theory of the state refuses, therefore, to speak of the sovereignty of an agency or organ. Thus the theory obscures the domination of some men over other men.”
Franz Neumann, The Change in the Function of Law in Modern Society
“We are above all obligated to note that a totally non-violent resolution of conflicts can never lead to a legal contract. For the latter, however, peacefully it may have been entered into by the parties, leads finally to possible violence. It confers on both parties the right to take recourse to violence in some form against the other, should he break the agreement. Not only that; like the outcome, the origin of ever contract also points toward violence. It need not be directly present in it as lawmaking violence, but it is represented in it insofar as the power that guarantees a legal contract is in turn of violent origin even if violence is not introduced into the contract itself. We are above all obligated to note that a totally non-violent resolution of conflicts can never lead to a legal contract. For the latter, however, peacefully it may have been entered into by the parties, leads finally to possible violence. It confers on both parties the right to take recourse to violence in some form against the other, should he break the agreement. Not only that; like the outcome, the origin of ever contract also points toward violence. It need not be directly present in it as lawmaking violence, but it is represented in it insofar as the power that guarantees a legal contract is in turn of violent origin even if violence is not introduced into the contract itself.”
Walter Benjamin, The Critique of Violence
“The worker sells labor power in a free bargain. This is the form called “contract.” A contract involves the exchange of mutual promises by individuals who are each free to accept or reject the terms proposed. In the contract for labor, however, we can see the way in which this formalism is belied by substance. The worker has nothing to sell but labor power. The price is dictated by market forces beyond the worker’s control. The individual is powerless relative to the employing enterprise. The intervention of collective bargaining may help equalize the balance, but only so far. And this is not to speak of the take-it-or-leave it pseudo-bargains that are everywhere in an economy dominated by powerful sellers and buyers.”
Michael Tigar, Laws Lawyers and the Law’s Fake Bargains
The question as to what precisely constitutes “law”, as a specific social phenomenon, is a very important one, but only within certain methodological limits. The approach I will take to this question is one that is intimately connected with Pashukanis; in fact much of what I will now say will be rooted in Pashukanis’ General Theory of Law and Marxism. Before going onto analysis proper it is necessary to note that an exposition of what law is will not necessary be massively detailed. This is because such an undertaking can only really be abstract, and is merely an analysis, the real meat of Marxian legal theory lies with examining the concrete determination of specific laws, and the methods in which particular laws come into being.- these are questions relevant to a comprehensive Marxian legal theory, but not to this particular question.
It is also important to remember that this is a Marxist analysis, and therefore there are limits to the enquiry. The methodological considerations here are that a material, dialectical and historical path must be pursued. Therefore, the point of this analysis is not to construct the “concept” of law, or develop an idea of a pure idea of law, that is constructed solely in thought. Rather one must look at law as it has been historically and materially constituted across the world, this will of course entail some “theoretical abstractions”, as one must find the underlying material/social relations that give rise to law, but this is not the same thing as building a wholly abstract ideal.
Pashukanis approached this question in a very specific way; firstly, Pashukanis takes the opinion that, no matter how incorrect they are, juridical abstractions do represent some kind of objective reality. Just as bourgeois political economy can represent the truth of capitalist economy, bourgeois jurisprudence can represent the truth of law. Thus throughout any examination of the law one must bear in mind concepts like the “legal subject”.
An exposition of this sort cannot remain purely descriptive, in that as one puts forward one’s own analysis one must simultaneous say why this is more correct than any other approach, thus description must also be critique. The first historical material question proposition one must put forward is an obvious one. At its most basic law is a social relation that serves to regulate conduct, thus its content will always be normative. As a beginning definition this is useful, as an indisputable foundation upon which to begin an analysis, but it clearly cannot give us a proper definition of law is.
Let us, for a second, imagine that we were to take this position, that we could define law in this way, by the fact of its normativity, Pashukanis (after his politically motivated self criticism) was to put forward a very similar position, namely that law is “the form of regulation and consolidation of production relationships and also of other social relationships of class society”.[i] Whilst there is obviously still some Marxism here (in that there is a materialist explanation present), such a view, Marxist or not, does nothing to advance our understanding of law as a specific social relationship.
The problem here is that defining law purely in terms of regulation or norm giving is foolish, since there are plenty of relationships in life that are normative, morality, religion, simple rules and furthermore, from a Marxian standpoint the whole of the “superstructure” serves to regulate and consolidate social relationships, Some people (e.g. John Austin) have attempted to solve this conundrum by adding in a sovereign figure, i.e. law is normative, but issued by someone with a monopoly on legitimate violence (or simply violence). But this itself is problematic if one wishes to identify the law as a specific social relation. Designating law as purely norms backed up by state violence means that one cannot distinguish between those acts of a state which are law, and those which are just violence. State violence is often normative but this does not mean it is all “law” or even that it is all “law making”. Even if one can see the historical origin of law is linked to the violence of a sovereign, such a conception does not allow us to distinguish between law and politics. Of course, some may argue that the two are one and the same (and I shall argue later that their conceptual distinctions really aren’t so big), but this would seem to fly in the face of material reality, where there is at least some semblance of a distinction.
Another approach (that taken by Alan Hunt) is to observe the “social practices” of a given historical period. From this we can gauge which of these practices is “law”, this could be for example be done by looking at those regulations which were enforced in a court. To an extent this approach is of course correct, in that we cannot “construct” a definition of law, rather we must observe law in its historical movement, it is for this reason that Pashukanis assigns an importance to bourgeois jurisprudence. However, the problem with this approach is two-fold. Firstly, we cannot simply accept that what is called “law” is always law or that it contains the relations necessary to reveal its what makes it "law", we can hardly pierce the bourgeois ideological veil by simply accepting what we are told. Secondly, if one says that law is that which the courts enforce one is not that much closer to finding out what law “is”, and how it is constituted. For if we asked what the courts enforce, we would of course reply “the law”, leading to an obvious circularity. This is not to say that we should ignore the structure of the lawsuit, because it is in fact vitally important, provided it is framed in the correct way.
Pashukanis provides away out of this maze in his General Theory of Law and Marxism. The first step is to acknowledge that law is a form of social regulation. The next step is simply to note that “under certain conditions the regulation of social relationships assumes a legal character”.[ii] At first sight this may seem to be a bit of a meaningless utterance, and Pashukanis acknowledges as such. Defining law as social regulation with a legal character does appear to be tautological. However, Pashukanis’ formulation is, in fact, a perfect example of Marxist method. Rather than pose the question as one of “logic” or “the ideal” it is a historical and material one. In history, under certain conditions a specific form of regulation arises (one with a “legal character”) which we call “the law”. Such an approach allows us to identify law as a specific social relationship (“the law-ness of legal relationships”[iii] as China Miéville puts it) because under certain conditions regulation acquires a legal character. Thus what makes law conceptually and historically specific is not its content, and not that it regulates or assigns norms, but that it has a different form to other forms of regulation.
Several elements can now coalesce in this definition. Firstly, it is a historical and material question, since one must observe the historical and material circumstances that allow law to differentiate itself. Furthermore, by phrasing law’s specificity as its form it allows us to examine the material structure of the law, rather than ideal definitions. Secondly, this is where bourgeois jurisprudence and the method laid out in Marx’s Grundrisse come into play. Since legal concepts reflect an actually existing, material relationship, legal categories allow us to demarcate the conceptual province of law, and this will aid in finding the underlying material relations that generate them. This is of course reminiscent of Marx’s dialectics of the abstract and concrete, abstract categories are, through material analysis, able to dialectically develop, so that we can understand the past, present and future in its concrete multiplicity. Finally, and similarly, in examining social practices one see the structure of law in its concrete functionality. If we wish to examine the “legal character” of law it is necessary to examine the structure of the court and the lawsuit, as this actualises the way in which the legal form mediates differences between individuals.
To be continued tomorrow…
Tuesday, August 16, 2005
Introductions, always difficult for me, the shifting eyes, the inane conversational niceties, the inevitable political comment that leaves them looking vaguely bewildered. Thankfully that won’t be so much of a problem here, so I’ll just get on with it. This blog will primarily exist as a receptacle for my occasional thoughts on that most exciting of disciplines – law.
Firstly, a very brief description of myself, I am a second year law student at the British centre of the ruling class, Cambridge University, hopefully I won’t be joining them any time soon. Throughout this blog a number of theoretical influences will no doubt come to light, so it’s best to explain them all straight away. My primary influences stem from the Marxist tradition, so this is, obviously, Marx himself, Evgeny Pashukanis (Bolshevik legal theorist), Franz Neumann and Otto Kirchheimer (members of the Frankfurt School and the SPD), Alan Hunt (although I’m not a huge fan of his), China Miéville (his approach to international law is exemplary) and B.S. Chimni. Aside from these legally specific people there’s also a strong hint of Gramsci, Marcuse, Lenin, Mao, Bettleheim, Balibar and Lukács (who has an interesting, if Weberian, approach to law in History and Class Consciousness). Outside of the Marxist tradition I have an interest in the Critical Legal Studies movement (Duncan Kennedy, Karl Klare, Mark Tushnet and Marti Koskiemmi spring to mind) and through them I’ve recently begun to research the legal realists (so far I like what I hear). Alan Norrie (a legal academic from King’s College London) is another influence, even if I feel he needs supplementing. In fact, in terms of “supplementation” I think that a synthesis of all my interests is both possible and desirable, as I’ll outline later I feel that all of the non-Marxists could do with being integrated into a Marxian framework, and all of the Marxists need to be integrated with the thought of Pashukanis.
Obviously influences are not just positive, and one’s thought can develop through the negation of other’s too. To this end I’d perhaps say my other influences are E.P. Thompson (yes after Whigs and Hunters he is, in my opinion, somewhat apostate), Andrew Ashworth (who wrote an excellent criminal law textbook (responsible for my sole first in the first year exams) – a supreme legal subjectivist, Joseph Raz (and the entire “Rule of Law” claptrap he represents), Alan Hunt and the Crits (yes it cuts both ways – just accept it).
So what sort of thing will be I addressing? Stuff like “what is law?”, “can indeterminacy (and therefore legal realism) be integrated into a Marxian framework?”, “why have judges ended up defending our rights in the UK?”, “can law be progressive?”, “can law transcend capitalism?”. I’ll also be looking at the most basic problems of Marxian legal theory, such as the property problem (does the economic base determine the legal superstructure), how class interests are translated into law, repressive tolerance, the role of law post-capitalism. Most importantly, and hopefully running through this like a red-thread, will be the attempt to develop a comprehensive Marxian jurisprudence through an integration of all of these thinkers and an elucidation of the general theory within concrete material circumstances. This will obviously involve various levels of materiality and abstraction, but as a subject not often tackled within the Marxian oeuvre I think it could well be interesting (if only for me)…Oh and I think I’ll have some pops at Norman Geras too.
As for the title of this thing (“Law and Disorder”) it’s not primarily some attempt at a witticism, it is rather a description of the essence of law. I think this is best expressed by Pashukanis in his General Theory of Law and Marxism:
“[D]eviation from a norm always constitutes their premise”
This, for me, encapsulates the dialectical brilliance of Pashukanis’ thought, and expresses beautifully his Marxism. Here the unity of opposites is concretely posited in a theoretical schema, where we see that “norms” are only necessary when normal conduct is deviated from, thus in a real sense law only exists with disorder, the normal conduct is only rendered "normal" by the deviation itself. Historically, then, law can only be seen as arising as a material solution to “disorder”, and to act as a corrective. But the continued existence of a law can surely only mean one thing, disorder still exists. Therefore the corollary of the law is not “order” because once one has “order” there is no need for law, law is dialectically generated by the continued presence of disorder. Therefore the fact that law does not extinguish itself also raises many questions as to its efficacy as a method of social regulation.
I chose this title therefore because it particularly expresses the essence of Pashukanis’ thought; his work is full of dialectical inversions of “common sense”, inversions that on further examination are theoretically correct.